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The Marco Civil, a ‘bill of rights for Internet’ users in Brazil, will come to a vote on August 8, 2012. While the majority seems to support the approval of the law, some are against the broad freedom that the initiative will bring.

Since October 29, 2009, the Bureau of Legislative Affairs of the Brazilian Ministry of Justice (SAL/MI), in partnership with Rio de Janeiro's Law School (DIREITO RIO) from Getulio Vargas Foundation, has been working on the collaborative creation of Marco Civil da Internet (Civil Regulatory Framework for the Internet) [pt].

The document has been created through public consultation. The population was encouraged to participate giving opinions and commentary through an online platform [pt]. As a result, several changes have been made to the original text, eventually passing through the Civil House and making it to the Chamber in 2012. Unlike Internet-related laws addressing piracy or copyright infringement, the Marco Civil is not a criminal law, but a civil one.

In an article written by Ellery Biddle for Global Voices Advocacy, she contextualizes the implications behind the bill, as well as the process followed for its creation. This same process places Brazil in a pioneering position in digital policy and may well serve as a model for many other countries.

Infographic on online citizen's vote on the Bill of Rights, by Vote na Web.

With such wide participation from the population, it was also expected that some would criticize and some would support the initiative. Many entities are in favour of the final version of the Bill of Rights. In a recent statement, Brazil's Internet Society (ISOC Brasil) [pt], a chapter fully recognized by the Internet Society (ISOC) [pt] declared its support to the approval of the proposal. The Comitê Gestor da Internet (CGI, Internet Manager Committee) [pt] also declared support [pt], stating:

Decided to make public its broad support for the final opinion of the Special Rapporteur of the House of Representatives, Congressman Alessandro Molon, congratulating him for the clarifying changes and precise enhancements that promoted in the text of the bill (…)

Several campaigns in support were created, and after the 2nd Internet Forum, which took place in the city of Olinda, in Recife, early July, participants decided to create a petition [pt] in support of the bill of rights. The intention was to get the most number of signatures as possible.

@luiza_erundina MP, we count on your presence and support to the approval of the #MarcoCivil report next week!

Some politicians also showed support. In a video published by the Frente Parlamentar da Cultura, Federal MP from Paraná João Arruda describes Marco Civil as “the best law in the world concerned with the Internet”.

Yes vs. No

Despite such support, the bill still divides opinions. While the majority seems to support passing of the bill, some position themselves against it, because of the broad freedom that Marco Civil brings to the Internet.

According to the law, service providers (such as Youtube and Facebook) would not have any responsibility over the content being uploaded by their users, and wouldn't be able to remove content – even if offensive – without a warrant, because such attitude is seen as a violation of freedom of expression. Professor Marcelo Thompson, from the University of Hong Kong, explains:

If the online service provider knows with certainty it is hosting content crudely offensive to someone’s privacy, sexual orientation, children’s rights, you name it, and does nothing about it — actually, even if the provider explicitly acknowledges the offensive nature of the content, even if it acts out of sheer cruelty in leaving things as they stand –, its conduct will not carry any liability whatsoever.

Word tree of the original text and comments on the bill of rights, created by Transparência Hackday / Esfera for Observatório do Marco Civil.

In an interview [pt] for the iPNews website, the president of the Comissão de Direito Eletrônico e Crimes de Alta Tecnologia (Committee of Electronic Rights and High-Technology Crimes) from OAB/SP, Coriliano Almeida Camargo, stated why he is against Marco Civil:

the project violates the rights of security and response, [the prohibition*] of anonymity and defends the exemption of liability for providers [which is] against the decision of the Superior Court of Justice (STJ), and the SP-Fecomercio (Federation of Trade in Goods, Services, Tourism of the State of São Paulo), the measure can make the Internet a “lawless land”, as if the Civil Marco is approved it may endanger security of web users. [*Translator's note: The Constitution of Brazil establishes that the expression of thought is free, anonymity being forbidden.]

Telecommunications companies and Copyright industry are strongly lobbying the Chamber of Representatives to put a hold on the Internet Bill of Rights; this pressure still counts on the support of the Ministry of Communications. Opponents of the Bill of Rights have openly announced that they will do anything to delay the vote and that they do not agree that net neutrality should be included in the Bill of Rights.

The vote is scheduled for August 8. The last voting day was expected to take place on June 11, but ended up being cancelled due to lack of quorum. Whatever the result, once again, Brazil has the chance to create new paths in the digital arena.

As I’ve commented on the original in Portuguese, let me also say here that I do not position myself against Marco Civil. Rather, I am very much in favour of Marco Civil.

What I am against to is Marco Civil’s civil liability regime, which only benefits companies like Google — not the users, which Marco Civil claims to protect.

In a nutshell, what Marco Civil’s civil liability provisions do is to establish a dynamics of impunity for — even intentional — human rights violations by companies like Google. As I have argued elsewhere ( http://bitly.com/RljjP9 ), this dynamics violates the Brazilian Constitution, the international human rights covenants of which Brazil is a signatory and is in complete disagreement with the treatment of the subject in international law.

A regime of liberty founded upon human rights violations is not, after all, a regime of liberty.